Abraham Joshua Heschel Day School, a private school in Northridge, California, got a unanimously ruling in Rosenfeld v. Abraham Joshua Heschel Day School, a case concerning a teacher alleged the school of age discrimination.

Plaintiff Ruth Rosenfeld accused the school of reducing her teaching hours on the basis of her age. On the other hand, the defendant claimed the reduction of her hours was due to a decline in enrollment at the school.

Rosenfeld not only used the disparate treatment theory in her suit against the school, but also the “disparate impact” theory. Whereas a claim of disparate treatment alleges the employer of intentional discrimination, disparate impact does not need proof of discriminatory intent. Rather, it argues that “the employee belongs to a ‘protected class’ and that the employers’ policies or actions simply impacted the employee negatively, regardless of intent. Because intent to discriminate is more difficult to prove, the theory arguably offer employees an advantage,” says Clint Robison, the LeClairRyan attorney representing the school.

However, the case was ruled in favor of the private school on the base that Rosenfeld did not properly take advantage of her internal grievance procedure before filing the lawsuit. The implication of this ruling is favorable to all California employers offering greater protection against discriminatory accusations with their grievance procedures. Robison states, “The court basically said that if a plaintiff fails to take advantage of an employer’s reasonable internal grievance procedures, then a jury should be able to consider this when assessing whether the plaintiff suffered damages in a discrimination case.”

The case also more clearly defined as to when the “disparate impact” theory can be used. The Court of appeal upheld Rosenfeld’s pleading of disparate treatment but not disparate impact. Because the plaintiff had not initially relied on the disparate impact theory, the court agreed that her claim had not given the defendant fair notice.

Robison states, “You can’t cloak a disparate impact claim within a traditional disparate treatment suit. You must plead it and give notice, so the employer has a chance to defend itself. This opinion is valuable because there’s heightened scrutiny of employment practices for potential disparate impact in California and elsewhere. We see federal and state agencies increasingly treat disparate impact claims as a civil rights issue and aggressively push the theory. Fortunately for employers, the Court has provided guidance to force those claims to the surface before trial.”